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# Proposed Federal Plan for Certification of Applicators of Restricted Use Pesticides within EPA Region 8 Indian Country

Prepared by EPA Region 8 March 7 , 20112 Table of Contents I. Executive Summary............................................................ 3 II. Introductio n..................................................................... 3 III. Background..................................................................... 3 IV. Definitions....................................................................... 4 V. Applicability of the Plan...................................................... 4 VI. Legal Authority................................................................ 5 VII. Lead Agency.................................................................... 5 A. Funding and Personnel B. Reporting VIII. Applicator Requirements and Classification & Certification Options..................... ...................................................... 7 A. Private Applicators B. Commercial Applicators IX. Commercial Applicator Categories.......................................... 8 X. Certification Procedures...................................................... 9 XI. Enforce ment of the Plan....................................................... 9 A. Enforcement Authority B. Pesticide Dealer Reporting Requirements C. Inspections D. Revocation, Suspension, and Modification E. Penalties XII. Appendices....................................................................... 1 2

A. Federal Insecticide Fungicide & Rodenticide Act

– Sec tion 11 B. 40 Code of Federal Regulations

– Protection of the Environment, Section 171.11 C. Definitions D. Pesticide Applicator Certification Form s (draft)3

I. Executive Summary Under the authority

of Section 11(a)(1) of the Federal Insecticide, Fungicid e, and Rodenticide Act (FIFRA) , and in accordance with the regulations found at Title 40 of the C o de of Federal Regulations (CFR) Part 171.11, the United States Environmental Protection Agency

(EPA) , Region 8 (EPA R8) is implementing a Proposed Federal Pla n for Certification of Applicators of Restricted Use Pesticides within EPA Region 8 Indian Country (Plan) for those areas of EPA R8 Indian country 1 where no other EPA
- approved plan applies . Th e Plan describes the process by which EPA R8 will implement a p rogram for the certification of applicators of restricted use pesticides (RUPs) in R8 Indian country based upon the certification requirements enumerated at 40 CFR Part 171. The EPA R8 will administer routine maintenance activities associated with implem entation of this Plan and c onduct inspections and take enforcement action s as appropriate. II. Introduction Th is Plan describes the process for becoming certified to use RUPs within EPA R8 Indian country . EPA R8 Indian country refers to land defined as In dian country at 18 U.S.C. § 1151 that is located in the states of Utah, Montana, Wyoming, Colorado, North Dakota, and South Dakota

. 1 Under FIFRA, pesticides (or the particular use or uses of a pesticide) that may generally cause, without additional regulatory restrictions, unreasonable adverse effects on the environment, including injury to the applicator, shall be classified for “restricted use.” If the classification is made because of hazards to the applicator, the pesticide may onl y be applied by

or under the direct supervision of a certified applicator. If the classification is made because of potential unreasonable adverse effects on the environment, the pesticide may onl y be applied b y or under the direct supervision of a certified applicator or su bject to such other restrictions as the Administrator may provide by regulation. To be certified, an individual must be determined to be competent with respect to the use and handling of pesticides covered b y the ce rtification.
1 Indian country: As defined at 18 U.S.C. § 1151: (a) all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstandin g the issuance of any patent, and, including rights

- of

- way running through the reservation; (b) all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether wi thin or without the limits of a state; and (c) all Indian allotments, the Indian titles to which have not been extinguished, including rights

- of

way running through the same. Consistent with the statutory definition of Indian country , as well as federal c ase law interpreting this statutory language, EPA treats lands held by

the federal government in trust for Indian tribes that exist outside of formal reservations as informal reservations and , thus , as Indian country

.4

A person become s a certifi ed applicator through meeting the requirements of a certification plan that is administered by a pertinent state, tribal, territorial, or federal agency and is approved by EPA. This document describes the certification plan EPA R8 will use to certify

appl icators of RUPs for those areas of EPA R8 Indian country where no other EPA
- approved plan applies

. III. Background Among other things, EPA’s regulations at 40 CFR Part 171 provide that : 1) An Indian tribe may

develop its own plan for certifyingprivate and commercial applicators to use or supervise the use of RUPs; 2) If a tribe does not develop it s own certification plan , the tribe may choose to utilize a state’s certification program, with the concurrence of that state; or 3) EPA can implement a federal plan for the certification of applicators of RUPs. Under 40 CFR § 171.11, EPA is authorized to implement a plan for the federal certification of applicators of RUPs where there is no EPA

- approved state or tribal applicator certification plan in effect. Currentl y, the Cheyenne River Sioux Tribe and the Mandan, Hidatsu, and Arikara Tribes ( or Three Affiliated Tribes) have EPA
- approved pesticide certification plan s for RUP applicators. Furthermore, EPA has implemented a federal plan in Navajo Indian Country

. EPA R egion 8, after consult ing with the Region 8 tribal leaders , environmental directors, and pesticide program managers , determined that implement ing a federal certification plan is the preferred approach to allow the use of RUPs and ensure adequate protection of human health and the environment in Indian country in EPA R8 . Therefore, i n accordance with 40 CFR § 171.11, EPA R8 will implement this Plan for the federal certification of applicators of RUPs in EPA R8 Indian country where no other EPA
approved plan exists . Implementation of this certification Plan will 1) provide a mechanism by

which individuals can become certified; 2) establish requirements that ensure and demonstrate competency in the proper use and application of RUPs; and 3) ensure that an individual adheres to certification requirements. IV. Definitions See Appendix C for relevant definitions.
V. Applicability of the Plan EPA R8 will implement this Plan within those areas of EPA R8 Indian country where no other EPA
- approved plan applies

.5

Tribes in Region 8 may

continue to pursue options available under 40 CFR § 171.10 for their areas of Indian country , including seeking EPA approval of tribal plans for such areas or utilizing a state’s certification program b y entering into an agreement wi th the state . An EPA
- approved plan under 40 CFR § 171.10 would replace this federal plan for the relevant area of Indian country. S ome tribes may also choose to further restrict or prohibit the use of RUPs in their areas through the implementation of tribal code s , laws , regulations , or applicable tribal requirements

. EPA R8 intends to continue consulting with tribes whose areas of Indian country are subject to this federal plan regarding the use of RUPs in their areas and notes that applicators certified under this P lan are responsible for compl yi ng with any

applicable tribal requirements

. VI. Legal Authority EPA will implement this Plan under FIFRA section 11(a)(1) ( see Appendix A), as amended, and 40 CFR § 171.11

. The regulations at 40 CFR § 171.11(e ) authorize EPA to issue certificates based upon the pesticide applicator first meeting the requirements for certification issued under any other EPA
- approved state , federal or tribal certification program. Additional enforcement authorities are containe d in Sections 8, 9, 13 and 14 of FIFRA. Also s ee the FIFRA Enforcement Response Policy at http://cfpub.epa.gov/compliance/resources/policies/civil/fifra/.
VII. Lead Agency EPA R8, Denver, Colorado, will administ er this federal certification Plan for RUP app licators in EPA R8 Indian country covered b y this Plan

. o EPA R8 Pesticide Program will administer routine maintenance activities, including application processing, database management, recordkeeping, and program oversight. The EPA R8 Pesticide Program i s also authorized to certify applicators and conduct general outreach.

o EPA R8 Technical Enforcement Program will conduct inspections as appropriate and coordinate with EPA R8 L egal Enforcement Program to take enforcement action under FIFRA sections 8, 9 , 13, and 14, as well as the FIFRA Enforcement Response Policy , as appropriate

. o EPA R8 Office of Regional Counsel will provide legal counsel to the EPA R8 Pesticide Program, Technical Enforcement Program, and Legal Enforcement Program, as appropriate

. A. Funding and Personnel6

EPA R8 has adequate resources to implement the Plan in EPA R8 Indian country consistent with the requirements of FIFRA and the regulations at 40 CFR Part 171.

Table 1. Allocation of EPA R8 FTE and corresponding duties

. FTE * (full time equivalent) Duties 0.25 ** application processing and associated duties (database

management, recordkeeping, reporting, routine maintenance) 0.25 program oversight, outreach 0.25 ** enforcement administration and associated dutie s (database

management, recordkeeping, routine maintenance) 0.35 EPA inspections, enforcement actions 0.45 Tribal inspectors with f ederal inspector credentials * These activities will fall within duties of existing staff and th is does not represent an increase in staffing levels. **SEE (senior environmental employee, contractor) B. Reporting The EPA R8 Pesticide Program will ensure that this Plan is maintained and kept current in accordance w ith the requirements at 40 CFR Part 171. EPA R8 will make the Plan publicly

available at EPA’s Certification and Training database website: http://cpard.wsu.edu/

. EPA R8 will submit annual certification accomplishment reporting b y December 31 st of ea ch calendar year via the database website. EPA R8 will maintain an active listing of federally certified applicators. Additionally , EPA R8 will maintain a list of th e tribes covered under the Plan at www.epa.gov/region08/tobedetermined

. Copies of the Plan database and current listing of federall y certified applicators will also be available in hard copy upon request by

contacting: Tribal C&T Program Manager US EPA, R8 Pesticide Program, 8P

- P3T 1595 Wy nkoop Street7 Denver, CO 80202 1
- 800
- 227
- 8917

VIII. Applicator Requirements and Classification & Certification Options Under this Plan, EPA R8 will implement a program for the certification of private and commercial applicators to apply RUPs in those areas of EPA R8 Indian country where no other EPA
- approved plan applies

. Each applicator must determine if the RUP may be applie d within a particular area of Indian country , or if application of the p esticide is limited by tribal code or other restric tions. A. Private Applicators For individuals seeking certification as a private applicator under the Plan, EPA R8 will exercise its authority contained in 40 CFR §§ 171.11(d)(1) & (e) to issue certifications if the applicator either:

(1 ) Submits evidence of certification as a private applicator authorized to apply

federally designated RUPs through an EPA

approved state or tribal plan with a contiguous boundary to the area of Indian country

in question. If circumstances require, the EPA Region may work with the tribe to allow federal certification under this P lan based on a valid certification from another nearb y state or tribe ; or (2 ) Submits documentation of phy sical attendance and completion of an approved training and self

- study evaluation

. Length of certification: Under 40 CFR 171.11(e), currentl y a private applicator\certificate expires 3 ye ars after the date of issuance or until the expiration date of the original federal, state, or tribal certificate, whichever occurs first. A proposed rule is currentl y under development that will allow a federal certification based on a valid federal, state or tribal certification, to expire when the original certificate expires, unless the certificate is suspended or revoked. Once the amendment is finalized, the Agency will utilize the expiration date of the original valid certification. Renewal/recertification: Applicators may appl y t o be recertified through the options listed in Section VIII (A) (1 ) and (2 ) of this Plan during the 12 months preceding the expiration of their current certificate.8 B. Commercial Applicators For individuals seeking certification as a commercial applicator under the Plan, EPA R8 will utilize its authority contained in 40 CFR § 171.11(e) to issue certification as described below:

(1) Submitting evidence of certification as a commercial applicator authorized to apply federally designated RUPs under any other EPA

- approved state , federal or tribal plan with a contiguous boundary to the area of Indian country in question

. Under this option

, EPA R8 may

issue federal certificates to persons who are certified as commercial applicators for the same category(ies) listed in their original certificate (except for sodium cyanide capsules used with ejector devices and s odium f luoroacetate used in l ivestock p rotection c ollars ; see part IX of this P lan for more information on these categories)

. If circumstances require, the EPA Region may work with the tribe to allow federal certification under this P lan based on a vali d certification from another nearb y state or tribe

. Length of certification: Under 40 CFR 171.11(e), currentl y a commercial applicator certificate expires 2 years after the date of issuance and three years for private applicators, or until the expiration date of the original federal, state, or tribal certificate, whichever occurs first. A proposed rule is currentl y under development that will allow a federal certification based on a valid federal, state or tribal certification, to expire when the original certificate expires, unless the certificate is suspended or revoked. Once the amendment is finalized, the Agency

will utilize the expiration date of the original valid certification. Renewal/recertification: Applicators may appl y t o be recertifie d through the options listed in Section VIII (B)( 1 ) of this Plan during the 12 months preceding the expiration of their current certificate.

IX. Commercial Applicator Categories EPA will recognize commercial applicators according to the competency standards enumerated at 40 CFR § 171.4(c)

. EPA will recognize the categories authorized in the original certificate , and commercial applicators will be authorized to apply RUPs in Indian country

for uses covered in their underl yi ng federal, state or tribal c ertificate w ith the exception of the following:9

For sodium c yanide c apsules used with ejector devices for livestock predator control , there is a use restriction that requires that supervisors of applicators monitor the applicators. As stated on the labe ls, the supervisors are the registrants, which may be federal agencies, state agencies, or Indian tribes. Currently , onl y one Indian tribe

-- the Navajo Nation

-- has obtained a registration for sodium c yanide c apsules. Under this Region 8 federal plan, a federal certificate will only include a sodium c yani de c apsule category if the relevant Indian tribe for the area of Indian country at issue obtains its own registration for this product and will conduct its own monitoring and supervision. Registration s for s odium f luoroacetate used in l ivestock p rotection c ollars are currentl y limited to one federal agency , to State agencies in Montana, New Mexico, South Dakota, and Wyoming, and to a private entity whose registered product may onl y be used in Texas. Currently , no Indian tribe has a registration for sodium fluoroacetate used in l ivestock p rotection c ollars. Under this Region 8 federal plan, a federal certificate will only include a sodium fluoroacetate l ivestock p rotection c ollar category if the relevant Indian tribe for the area of Indian country at issue obtains its own registration for this product and will conduct its own monitoring and supervision.

X. Certification Procedures Persons seeking commercial certification to apply RUPs in EPA R8 Indian country must submit to EPA R8, at the address noted below, a completed ‘Pesticide Applicator Certification Form’ EPA Form xxxx

- xx (Appendix D) along with proof (copy of certificate, credential, license, or other documentation) of a valid/current federal, state, or tribal certification with a contiguous boundary to the relevant area of Indian country

. Individuals seeking to be certified as private applicators must submit a completed ‘Pesticide Applicator Certification Form’ EPA Form xxxx

- xx (Appendix D) wi th either (1) cop y of certificate, credential, license, or other documentation of a valid/current federal, state, or tribal certification, or , (2) documentation showing they have phy sically attended and complete d an approved training course and self

- study evaluation. The self

study evaluation and guide can be obtained b y contacting EPA R8 at the address below. EPA R8 may

verify with the appropriate federal, state, or tribal certifying agency with which the applicant is claiming to hold a valid/current cer tification that the certification on which EPA R8 would base its federal certification is, in fact, valid and current. The Pesticide Applicator Certification Form is currently available at www.regulations.gov , docket number docket identification number EPA

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. Once the Plan is final, the form will be available at www.epa.gov/region08/tobedetermined or may be obtained by

contacting EPA R8 directly at:10 Tribal C&T Program Manager US EPA, R8 Pesticide Program, 8P

- P3T 1595 Wy nkoop Street Denver, CO 80202 1
- 800
- 227
- 8917 XI. Enforcement of the Plan A. Enforcement Authority EPA R8 will enforce this Plan in those areas of EPA R8 Indian country where no other EPA
- approved plan applies . States, tribes, and other federal agencies that issued a certification upon which the federal certification described herein is based are not approved or authorized by EPA to assure compliance in Indian country w ith the federal certification provided b y this Plan. EPA has the authority

to take action, as appropriate, to ensure that RUPs are used in accordance with their EPA

- registered labeling. EPA R8 will also ensure that pesticide applicators and dealers comply with the requirements of FIFRA and the implementing regulations, including provisions of this federal Plan specified in 40 CFR § 171.11, in EPA R8 Indian country

. Specificall y, commercial applicators are required to maintain records as provided in 4 0 CFR § 171.11(c) (7). EPA will allow, during the 6 month period after publication of the final Plan, applicators to appl y RUPs under the Plan in EPA Region 8 Indian country only for the categories for which they already have a valid state, tribal or fe deral certificate 2 if they submit a complete application to EPA Region 8 showing proof of a valid state, tribal, or federal certification. 3 Beginning 6 months after publication of the final Plan, applicators who are covered under this Plan and have not received a written federal certification from EPA Region 8 are prohibited from applying RUPs in EPA Region 8 Indian country

.

B. Pesticide Dealer Reporting Requirements

2 Please see Section IX for commerc ial applicator categories recognized under the Plan, as there are proposed exceptions for sodium cyanide capsules used with ejector devices and sodium fluoroacetate used in livestock protection collars. 3 Although predicated in part on the applicator's exi sting valid certification, any use permitted under this Plan is allowed and will be enforced only under federal authority.11

Each restricted use pesticide retail dealer in Indian country where this federal Plan applies must keep records and submit reports to EPA as set forth in 40 CFR § 171.11(g). To compl y with these reporting requirements all pesticide dealers and pesticide dealerships located within EPA R8 Indian country must send such reports to: Tribal C&T Program Manager US EPA, R8 Pesticide Program, 8P

- P3T 1595 Wy nkoop Street Denver, CO 80202 1
- 800
- 227
- 8917 C. In spections EPA R8 will enforce this Plan by conducting inspections , as appropriate, of RUP dealers and certified applicators in EPA R8 Indian country to ensure that RUP dealers are maintaining the required records, are making RUPs available for use in accordance with 40 CFR §171.11(g), and that certified applicators are complying with all applicable label directions. In addition, tribal pestic ide inspectors possessing federal inspector credentials and/or EPA R8 inspectors will also perform inspections and investigations on behalf of EPA

. EPA R8 has the authority to review RUP dealer records and certified applicator records pursuant to Sectio n s 8 and 11 of FIFRA, 7 U.S.C. § 136 f and 136 i

- 1(b) , and 40 CFR §§ 171.11(g)(3) and (c)(7) . Federall y credentialed tribal inspectors and/or EPA R8 inspectors will investigate incidents, accidents, and complaints related to pesticide use in EPA R8 Indian c ountry and report to EPA R8 for appropriate enforcement response as set forth b y the FIFRA Enforcement Response Policy (http://cfpub.epa.gov/compliance/resources/policies/civil/fifra/) and as consistent with other EPA policies

. D. Revocation, Suspension, and Modification EPA R8 may, if appropriate, deny, modify, suspend, or revoke a certificate, or take an enforcement action under FIFRA if the applicant or certificate holder has been convicted under section 14(b) of FIFRA or been subject to a final ord er imposing a civil penalty under section 14(a) of FIFRA or where any of the following acts listed in 40 CFR § 171.11(f) occur:
o use of an y registered pesticide in a manner inconsistent with its labeling; o making available for use, or use of any register ed pesticide classified for restricted use other than in accordance with section 3(d) of the amended FIFRA and an y regulations promulgated thereunder; o refusal to keep and maintain any records required pursuant to this section; o making of false or fraudulent records, invoices or reports;12 o failure to compl y with any limitations or restrictions on or in a duly issued certificate, or o violation of any

provision of the amended FIFRA and the regulations promulgated thereunder. Pursuant to 40 CFR § 171.11(e), EPA Re gion 8 will begin procedures to revoke the federal certification if the federal, state, or tribal certificate upon which the federal certificate is based is revoked. EPA may also suspend or modify

a federal certificate if the federal, state, or tribal cer tificate upon which it is based is suspended or modified

. If EPA R8 decides to deny, revoke, suspend or modify a certificate, EPA R8 will notify (1) the applicant or certificate holder pursuant to 40 CFR § 171.11(f)(2)(i) and the EPA R8 FIFRA Enforcement Response Policy , and (2) the agency that issued the original certificate upon which the federal certificate was based, if necessary

. If the applicant or certificate holder requests a hearing pursuant to 40 CFR § 171.11(f)(2)(ii), EPA will follow the heari ng process contained in 40 CFR § 171.11(f)(3) & (4).
E. Penalties Under Section 14 of FIFRA, 7 U.S.C. § 136 l , as amended b y the Federal Civil Penalties Inflation, Adjustment Act of 1990, 28 U.S.C. § 146 l , and the Debt Collection Improvement Act of 19 96, 31 U.S.C. § 370 l , EPA has the authority to assess both civil and criminal penalties for violations of FIFRA . Commercial applicators, wholesalers, dealers, retailers, or other distributors can be assessed a fine of up to a $ 7 ,500 for each offense as ci vil penalties and up to $25,000 or imprisonment, for not more than one ye ar, or both, for each offense as criminal penalties. Private applicators, subsequent to receiving a written warning, can be assessed a civil penalty

up to $1, 1 00, or a criminal penal ty of not more than a $1,000 fine and/or imprisonment, for not more than thirty (30) day s, for each offense. EPA R8’s enforcement action s are conducted consistent with applicable EPA R8 enforcement and tribal policies and guidance.
XII. APPENDICES App endix A . Federal Insecticide Fungicide & Rodenticide Act

– Section 11 SEC. 11. [7 U.S.C. 136i] USE OF RESTRICTED USE PESTICIDES; APPLICATORS. (a) CERTIFICATION PROCEDURE.

— (1) FEDERAL CERTIFICATION.

—In an y State for which a State plan for applicator certification has not been approved by the Administrator, the Administrator, in13

consultation with the Governor of such State, shall conduct a program for the certification of applicators of pesticides. Such program shall conform to the requirements imposed upon the States under the provisions of subsection (a)(2) of this section and shall not require private applicators to take an y examination to establish competency in the use of pesticides. Prior to the implementation of the program, the Administrator shall publish in the Federal Register for review and comment a summary o f the Federal plan for applicator certification and shall make generally avail

- able within the State copies of the plan. The Administrator shall hold public hearings at one or more locati ons within the State if so requested by the Governor of such State during the thirty d ay s following publication of the Federal Register notice inviting comment on the Federal plan. The hearings shall be held within thirty d ay s following receipt of the requ est from the Governor. Inany

S tate in which the Administrator conducts a certification program, the Administrator may

require an y per - son engaging in the commercial application, sale, offering for sale, holding for sale, or distribution of an y pesticide o ne or more uses of which have been classified for restricted use to maintain such records and submit such reports concerning the commercial application, sale, or distribution of such pesticide as the Administrator may be regulation prescribe. Subject to paragraph (2), the Administrator shall prescribe standards for the certification of applicators of pesticides. Such standards shall provide that to be certified, an individual must be determined to be competent with respect to the use and handling of pestici des, or to the use and handling of the pesticide or class of pesticides covered by s uch individual’s certification. The certification standard for a private applicator shall, under a State plan submitted for approval, be deemed fulfilled by the applicator completing a certification form. The Administrator shall further assure that such form contains adequate information and affirmations to carry

out the intent of this Act, and may include in the form an affirmation that the private applicator has completed a training program approved by the Administrator so long as the program does not require the private applicator to take, pursuant to a requirement prescribed by the Administrator, any

e xamination to establish competency

in the use of the pesticide. The Administrator may require any

pesticide dealer participating in a certification program to be licensed under a State licensing program approved by the Administrator. (2) STATE CERTIFICATION.

—If an y State, at any t ime, de

- sires to certify applicators of pest icides, the Governor of such State shall submit a State plan for such purpose. The Administrator shall approve the plan submitted by any S tate, or any modification thereof, if such plan in the Administrator’s judgment

— (A) designates a State agency as the agency

responsible for administering the plan throughout the State; (B) contains satisfactory assurances that such agency h as or will have the legal authority

and qualified personnel necessary to carry out the plan; (C) gives satisfactory

assurances that the State will de

- vote adequate funds to the administration of the plan; (D) provides that the State agency w ill make such re - ports to the Administrator in such form and containing such information as the Administrator may from time to time require; and14 (E) contains satisfactory

a ssurances that State standards for the certification of applicators of pesticides conform with those standards prescribed by the Administrator under paragraph (1). Any S tate certification program under this section shall be maintained in accordance with the State plan approved under this section. (b) STATE PLANS.

—If the Administrator rejects a plan submitted under subsection (a)(2), the Administrator shall afford the State submitting the plan due notice and opportunity

f or hearing before so doing. If the Administrator approves a plan submitted under subsection (a)(2), then such State shall certify a pplicators of pesticides with respect to such State. Whenever the Administrator determines that a State is not administering the ce rtification pro - gram in accordance with the plan approved under this section, the Administrator shall so notify the State and provide for a hearing at the request of the State, and, if appropriate corrective action is not taken within a reasonable time, no t to exceed ninety days , the Administrator shall withdraw approval of such plan. (c) INSTRUCTION IN IN TEGRATED PEST MANAGEMENT TECH
NI QUES.

— Standards prescribed by the Administrator for the certification of applicators of pesticides under subsection (a), and the State plans submitted to the Administrator under subsection (a), shall include provisions for making instructional materials concerning integrated pest management techniques available to individuals at their request in accordance with the provision s of section 23(c) of this Act, but such plans may not require that an y individual receive instruction concerning such techniques or be shown to be competent with respect to the use of such techniques. The Administrator and States implementing such plans s hall provide that all interested individuals are notified of the availability

of such instructional materials. (d) ING ENERAL.

—

No regulations prescribed by the Adminis trator for carrying out the provisions of this Act shall require an y private applicator to maintain any records or file an y reports or other documents. (e) SEPARATE STANDARDS.

—When establishing or approving standards for licensing or certification, the Administrator shall establish separate standards for commercial and private applicators.15

Appendix B . 40 Code of Federal Regulations

– Protection of the Environment, Section 171.11161718192021

Appendix C. Definitions Certification: The term certification means the recognition by a certifying agency that a person is competent and thus authorized to use or supervise the use of restricted use pesticides. 40 CFR 171.2(a)(7) Commercial applicator: The term ‘‘commercial applicator’’ means an applicator (whether or not the applicator is a private applicator with respect to some uses) who uses or supervises the use of an y pesticide which is classified for restricted use for any purpos e or on any property other than as provided by paragraph (2) [private applicator definition]

. FIFRA 2(e)(3) Indian country: As defined at 18 U.S.C. § 1151: (a) all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of an y patent, and, including rights

- of

- way running through the reservation; (b) all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory

thereof, and whether within or without the limits of a state; and (c) all Indian allotments, the Indian titles to which have not been extinguished, including rights

- of

- way running through the same. Consistent with the statutory

definition of Indian country , as well as federal case law interpreting this statutory

language, EPA treats lands held by the federal government in trust for Indian tribes that exist outside of formal reservations as informal reservations, and thus as Indian country

. Pesticide: The term ‘‘pesticide’’ means (1) any substance or mixture of substances intended for preventing, destro yi ng, repel

- ling, or mitigating any pest, (2) an y substance or mixture of sub

- stances intended for use as a plant regulator, defoliant, or desicca nt, and (3) an y nitrogen stabilizer, except that the term ‘‘pesticide’’ shall not include any article that is a ‘‘new animal drug’’ within the meaning of section 201(w) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 321(w)), that has been determine d by the Secretary

of Health and Human Services not to be a new animal drug by a regulation establishing conditions of use for the article, or that is an animal feed within the meaning of section 201(x) of such Act (21 U.S.C. 321(x)) bearing or containing a new animal drug. The term ‘‘pesticide’’ does not include liquid chemical sterilant products (including any sterilant or subordinate disinfectant claims on such products) for use on a critical or semi

- critical device, as de

- fined in section 201 of the Fed eral Food, Drug, and Cosmetic Act (21 U.S.C. 321). For purposes of the preceding sentence, the term ‘‘critical device’’ includes any device which is introduced directly

into the human body , either into or in contact with the bloodstream or normall y sterile areas of the body and the term ‘‘semi

- critical de

vice’’ includes any device which contacts intact mucous membranes but which does22

not ordinarily

penetrate the blood barrier or other

- wise enter normally sterile areas of the body

. FIFRA 2(u) Private applicator: The term ‘‘private applicator’’ means a certified applicator who uses or supervises the use of an y pesticide which is classified for restricted use for purposes of producing any agricultural commodity

on property

owned or rented by

the applicator or the applicator’s emplo ye r or (if applied without compensation other than trading of personal services between producers of agricultural commodities) on the property of another person. FIFRA 2(e)(2) Restricted use pesticide (RUP): A pesticide that is classified for restricted use under the provisions of section 3(d)(1)(C) of FIFRA23 

## Appendix D Pesticide Applicator Certification Form (draft)

The form is available at www.regulations.go v D ocket identification number EPA

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